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What is the Function of the Conseil D'etat in the Preparation of Legislation?

Published online by Cambridge University Press:  17 January 2008

John Bell
John Bell
Affiliation:
Professor of Law, University of Leeds.
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Extract

Consideration of the Conseil d'Etat and its role in the preparation of legislation helps us in Britain to appreciate how our own legislative process might be improved. The Hansard Society Report1 suggested in 1992 that Britain needed to look beyond just improving the drafting of legislation and needed to reform the legislative process, both before a bill is presented to Parliament and in its passage through Parliament. My reflection on the French process is to suggest that this offers us a further focus of attention—the questions which should be asked during the scrutiny process. There are two areas where we need to ask questions—on fundamental rights and practical effectiveness. I think that the British trust too much to the political process to ensure that questions concerning respect for fundamental values and also administrative workability are addressed before a bill is passed by Parliament. This paper is influenced by observations made in 1986 of the Interior Section of the Conseil d'Etat in its scrutiny of a number of government bills at the beginning of the Chirac premiership.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 49 , Issue 3 , July 2000 , pp. 661 - 672
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. A summary of the international activities of the Conseil d'Etat can be found on its website: http://www.conseil-etat.fr. But the information given does not really enable the reader to assess the impact of the activity.

2. See my “Mechanisms for Cross-fertilisation of Administrative Law in Europe”, in Beatson, J. and Tridimas, T. (Eds), New Directions in European Public Law (1998), chap.11.Google Scholar

1. Hansard Society, Making the Law (Report 1992) (hereafter “Making the Laws”).

2. See especially, SirDale, William (ed.), British and French Statutory Drafting (Institute of Advanced Legal Studies, 1986).Google Scholar

3. “The Role of the Conseil d'Etat in Drafting Legislation”. A full description of the process of preparing bills from policy making to the final text can be found in Fournier, J., Le Travail gouvernemental (1987)Google Scholar, Pt. III, chap.2. Sec also Ducamin, B. (1981) 30 I.C.L.Q. 882, at pp.889–891CrossRefGoogle Scholar; Brown, L. N., “The Participation of the French Conseil d'Etat in Legislation” (1974) 48 Tulane L.Rev. 796.Google Scholar

4. Making the Law, op. cit., supra n.1, at p.105.

5. Under Art.39(2), all Government bills (projets de loi) are submitted to the Conseil d'Etat for an opinion, and under Art.37, all autonomous decrees are approved by it. Under Art.70(2), all measures of an economic or social character are submitted to the Conseil Economique et Social.

6. Parliamentary Scrutiny of Government Bills (1974), p.232Google Scholar; Making the Law, op. cit., supra n.1, at p.310. For an account of the French parliamentary committee process see Le Vert, D., in SirDale, William (ed.), Preparation and Accessibility of the Written Law in France (Statute Law Society, 1993), pp.24–32.Google Scholar

7. Making the Law, op. cit., supra p.316.

8. See Engle, G., “‘Bills are Made to Pass as Razors are Made to Sell’: Practical Constraints on the Preparation of Legislation” [1983] Stat.L.R. 7.Google Scholar

9. For instance, the projet de loi on the Code Pénal had two short articles and the entire Code in an annex, no doubt to ease the voting procedure on the floor of the Chamber.

10. A similar comment is made by Rendel, M., The Administrative Functions of the Conseil d'Etat (1970), p.231.Google Scholar

11. Letourneur, M., Bauchet, J. and Méric, J., Le Conseil d'Etat et les Tribunaux Administratifs (2nd edn, 1970), p.181.Google Scholar

12. Sec Oudinot, M., “Le rôle du Rapporteur devant les Formations Administrative du Conseil d'Etat”, in Livre Jubilaire (1952), p.4O3Google Scholar: “the task of the rapporteur is to place at the disposal of the formation which he has to help with complete information on all points.”

13. See Miers, D. and Page, A. C., Legislation (2nd edn, 1990), chap.5 for a very clear account of the process.Google Scholar

14. Making the Law, op. cit., supra para.221. See also Viscount Cranborne, Leader of the House, 559 H.L. Deb. 1322 (14 Dec. 1994): “legislating merely by laying down general principles is in most cases unlikely to provide the certainty which Parliament and the public should expect.”

15. See B. Ducamin, op. cit., supra n.3, at 894–895, and Sir William Dale, op. cit, supra n.6.

16. Contrast the strong arguments for this kind of Act made by the New Zealand Law Commission, Report 17 A New Interpretation Act. To Avoid “Prolixity and Tautology” (1991).

17. [1989] Stat.L.R. 211; also Making the Law, op. cit., supra n.l, at para.173 which points to the danger of bills going to Parliament half-baked. A similar point is made by B. Ducamin, op. cit., supra n.3, at p.886 where he shows the speed with which the Conseil is asked to work in its consultative process. Certainly the period I observed in the Conseil from Mar. to Jul. 1986 followed immediately on a change of government and many bills were rushed through the summer parliamentary session in order to pre-empt a premature dissolution by the President.

18. See B. Ducamin, op. cit., supra at p.895.

19. Op. cit., supra n.l, at para.195. The suggestion was to assign one member of Parliamentary Counsel to the Attorney-General's department.

20. [1999] 4 All E.R. 801. See also R. v. Secretary of Stale for the Home Department, ex p. Simms [1999] 3 All E.R. 400 and Rantzen v. Mirror Croup Newspapers (1986) Ltd [1993] 4 All E.R. 975 as an example of the influence of the Convention on the interpretation of statutes and DPP v. Jones [1999] 2 All E.R. 257 for its influence in interpreting the common law.

21. SirHutton, Noel, “The Mechanics of Law Reform” (1961) 24 M.L.R. 18, at p.21Google Scholar: The same document has to be designed to satisfy two distinct legislative audiences: first (in point of time) the parliamentary audience, mainly composed of laymen, whose primary need is to ascertain, with the minimum of labour and preferably no reference to any other document other than the bill itself, what is the general purpose and effect of each clause or section which they are asked to pass; and secondly, the expert lawyer and other professionals who will seek to find in the Act passed a specific answer to each specific question upon which they have to advise or decide. One customer wants a picture and the other wants a Bradshaw.

22. Op. cit. pp.75–76. Cf. M. Rendel, op. cit., supra n.10, at p.231: “The Conseil d'Etat, in its work of drafting, is concerned with legality in the widest sense of conformity with law, with desirability and with efficacity.”

23. See M. Rendel, op. cit., supra n.10, at pp.61–62.

24. M. Rendel, op. cit, supra, at pp.254–255.